Abstract:
In this article, the author examines whether there occurs a role for law in moral matters and traces the interrelation of law, religion and morality through ancient times. The popular concept of the connection between law and morality is that in some way the law exists to promote morality, to preserve those conditions which make the moral life possible, and then to enable men to lead sober and industrious lives. The average man regards law as justice systematized, and justice itself as a somewhat confusion of moral principles. The researcher through this article intends to portray the relation between Law and Morality during the ancient period as well as in the contemporary context. In order to reach the conclusion i.e. to form a relation between the two, the researcher would like to give a brief overview of these two aspects in the introduction, then go on to explain the nexus between these two and which are relevant in this context. Law is influenced from and has base of both religion and morality and hence their takes place a sought of interaction between the legal system and the moral faculty of our society. The researcher would analyze critically the thoughts about both these terms and lastly go on to distinguish the principles of Law and Morality intensely. In a traditional society laws have never had a very dominating character, but morality had always had a very predominant role.
INTRODUCTION
Law is defined in many ways; however the two main definitions can be described as natural law and legal positivism. Natural law is the view that laws are valid when they are in line with a certain higher authority over man; this can be God (according to Aquinas) or even a shared morality amongst society (Lon fuller). Whereas legal positivism is the view that a law is only valid if it is made by the right practice for the state creating the law (e.g. laws passed through parliament) it does not matter if we even like these laws, just as long as they are made using the right process (Austin).[1]
Morality on the other hand is determined by the will of humans rather than the law itself, it is a set of standards we have set ourselves to decide what is morally right or wrong. Morality is similar to law, but laws and customs (morality) must both be obeyed. Although we can see there are cases of both the law reflecting morality and the law not reflecting certain moral judgments, we still need to ask whether it is required of the law to reflect morality. Laws aim at the smooth functioning of society. This is not always based upon how fair the law is, though some of the most efficient laws are the fairest. Morality has been an integrated part of law as part III and part IV of Indian Constitution and also supports it but Modern legal positivist approach regards it outdated and negative and I found, today Law can be identified without reference to morality except where law accepts the moral criteria for creating it. From individual’s conscience and values of a society the morality comes and appears, therefore, what morality means to me, may not be to you. It is very difficult to create a law when there is conflict of opinion and morality always differs from individual to individual, however, morality cannot be always on the back of every statute. If something is immoral does not uncertainly makes it illegal and vice versa. This makes difference between the two.
HISTORICAL BACKGROUND
According to the sources of Hindu Law like Shrutis, Smritis and Vedas, there was no distinction between law and morality. In ancient times both the terms conveyed same meaning. It is evident that both law and morality serve to channel the behavior of an individual. Around 17th or 18th centuries, theories of natural law were very famous and they had moral base for their existence but in 19th century, Austin came with an argument that law has nothing to do with morals. He said, ‘Command of the sovereign is law’ and law is the subject matter of jurisprudence and not morals.[2] Later on in 20th century, Kelsen also accepted his view to the exclusion of all the matters from jurisprudence except law. This was the situation prevailed almost all over the world but now, the meaning of both the terms has changed. Some people regarded morality in terms of an immutable perception of conduct or discoverable by cause.
It is an expression of human behavior which may vary from society to society or from person to person. What morality means to you may not be same to me. We can take the following example, in some parts of Rajasthan, Child marriage is considered as good and it is their custom or accomplishing morals but for rest of the society, it is not a good practice. ‘Dharma’ in Sanskrit means righteousness, duty and law. The meaning of Dharma is wider than what we understand as law today. Legal duties and religious duties both are covered under Dharma. It not only includes laws and court procedures, but also a wide range of human activities like ritual purification, mode of dress and personal hygiene regimes. There can be negative impact of morality on one set of people and on the other hand, another morality can have positive impact on the other set of people. Law and morality both are prescriptive in nature and the main distinction between law and morality is that law is coercive whereas morality is not. Morality can be taken as the basis of law only at the places where the law accepts the grounds of morals for making it otherwise, in contemporary world, morality and law both has different meaning. Law can be identified without any reference to morality. The widely accepted and appreciated cultures in the society have been just, equal and moral. Such social set-ups promote healthy upbringing and these healthy upbringing is implanting moral values from parents, teachers, role models, peers, colleagues and the wider society. It is necessary to summarize the existing modern theories of moral development and then look into a part of our past and cultural heritage and review the traditional Hindu concepts of morality.
RELATIONSHIP BETWEEN LAW AND MORALITY
However, law and morality these terms were synonyms at one point of time but in modern age, both the terms have important independent meaning which can be found in the respective sphere. Law is a code of rules and regulations governing human conduct. It consists of positive and negative directions imposed by sovereign. As it is a coercive in nature, therefore, every one falling under its territory, bound to follow these sets of rules. Relation between law and morality can be traced in these two ways:
a) The former concept was, Morality as basis of law.
b) The present concept is, Morality as basis of law where law acknowledges the morality for making it.
Morality generally means ‘rules governing human behavior’ or sometimes one’s personal views about a thing or activity which should not be imposed upon others as these are not enforceable. Earlier law was purely based on morals and values. When state came into existence, the society opted for those rules and values which were important from its point and put its own sanction behind it. These norms were known as law. The rules made for good of the individual and which were not observed continuously by the state in its real term called morals. However, law and morality have same institution but by the time, they deviated in the course of its development. Many rules are mutual for both law and morality like robbery, murder; theft and decoity are some of the acts, against law as well as morality. Though, it cannot be said that morals are the basis of legal rules. It can be said that usually law has some base of morals but law and morality can be described separately in the contemporary world. There are various things, which may be immoral but not necessarily illegal like cheating on your friend or spouse, breaking promises (for certain sets of people) and which may be illegal but not necessarily immoral like drinking under age, abortion (for certain sets of people). It is stated by some scholars that “morality cannot be legislated” and I am agree with those scholars because it is individual’s will or conscience. We can take the following example, in Indian Society, morals say that inter caste marriages or love marriages should not take place but when two individuals, with their consent and wish want to marry, it is an independent state and everyone has right to choose his life partner according to his/her will. Where the issue of involvement by the law in such Indian democratic system arises? Actually, that person has to take a look at his family but law has nothing to do with such situation. Take another issue of live-in relationships, which already has a moral ban on it. My view is that when two major individuals with their free consent decide to live together, where the question of violation of moral standards arises. There is no violation of moral standards and no intervention by law. Following are other issues like prostitution, homosexuality which are in conflict to decide morality and law; therefore, morality cannot be legislated and as it depends upon the wishes of the individual except under certain circumstances. Even International Humanitarian Laws has laid certain moral standards as ingredient of law. Whenever, morality raises positive impact on society, a complete separation of law and morality is not possible in order to maintain balance. The objective of the law is to provide justice to people and justice in its popular meaning based upon the morals. In India, Supreme Court has stated that in case of conflict of fundamental rights of two individuals, the decision is to be made on the basis of morals. In the following example, when the blood sample of appellant was detected HIV (+). When because of disclosure, it was acknowledged by the ‘A’, fiancée of appellant and the proposed marriage of the appellant was break off. The hospital authorities were sued by the appellant for damages on account of violation of appellant’s right to privacy as well as doctor’s duty to maintain confidentiality. The Apex Court has given the decision that, where there is a clash between two fundamental rights, as in the above case, namely the appellant’s right to privacy as a part of right to life and A’s right to lead a healthy life which is her fundamental right under Article 21, the right which would advance the public interest or public morality, would alone be enforced through the procedure of the court, for the reason that moral consideration cannot be dismissed and the judges are not expected to sit mute in the courtroom, but have to be sensitive, in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day. Law cannot make people completely perfect. The purpose of law is not to make the laws of the land ineffective but to maintain law and order in the country. If someone violates these minimum standards, then punishment is remedy. Accordingly, morality has got recognition but it does not mean that all the legal rules are based on morals. There are certain legal rules which are not based on morality. Some of the examples are vicarious liability, principle of Absolute liability where one man is punished for the act of another and one has to bear consequences in a case, where he has not actually done any act, arising any obligation, respectively.
DISTINCTION BETWEEN LAW AND MORALITY
In modern times, there is a difference between law and morality. Roscoe Pound states that “as to application of moral and legal percepts respectively, it is said that moral principles are of individual and relative application; they must be implemented in reference to situation and individuals, whereas legal rules are of general and absolute application”[3]. The morality depends upon the will or conscience of the individual. An act moral for one person may be immoral for other and morals may mould the character of an individual. One of the best examples can be taken of marriage in Hindus and Muslims. Only one marriage is considered as sacred and bigamy is a sin in Hindus and in Muslims, they are allowed to marry four women at one point of time. Law takes care of the society collectively and not with the wishes of the individual. There is a famous maxim, “Ignorantia juris non execusat” meaning thereby, ignorance of law is no excuse. It is presumed that one should know the law of the land, if a person does not follow the law; state is empowered to punish that person whereas morality is not coercive in nature. There is no power to the state to punish for violation of such morality. While in case of application of law, it has universal rule of no ambiguity or vagueness whereas in case of actual application of morality, it differs from case to case as it is vague and uncertain. It is an affair of choice of a person. Despite of the differences stated above, there is harmony and unity between the two. Law ensures consistency to the code of behavioral law and it is essential as it cannot completely ignore the ethical and moral aspects. If there are laws, not up to the standards of ethical behavior, such laws cannot survive in contemporary India. India is a sensitive country in terms of ethics like where riots take place even on very small causes. In order to survive, a law must meet the expected social consciousness.
RELATIONSHIP BETWEEN LAW AND MORALITY WITH INDIAN PENAL CODE
Law maybe differs from morality but one can also not ignore the fact that morality cannot be completely detached or divorced from law. It will not be wrong to state that law has developed from the ashes of morality. Law at all times and places has in fact been deeply influenced both by conventional morality and ideas of particular social groups and also by the forms of enlightened moral criticism of those people whose moral horizon has exceeded the morality currently accepted. Therefore, if we club all these views in mind then it will be no wrong to say that though law and morality are inseparable, morality in some way is the important part of the Law. The important examples are the Indian Constitution, our Fundamental Rights (Part III Articles 12-35), Directive Principles Of State Policy (Part IV, Articles 36-51) etc., all these are the examples of having the base of morality and that morality is shaped and molded in the form of law so that it can be implemented and enforced by each and every citizens of India. The special importance is been given to the Indian Penal Code, 1860.[4] Morality is the important and hidden ingredient of almost every Section of Indian penal code. According to IPC the sections for Murder, Culpable homicide, theft, rape etc, are immoral to do. Therefore it will be no wrong to say that morality has a close relation with Indian Penal Code and is a dormant ingredient of this very statute.
CRITICAL ANALYSIS
On the separation of law and morality, number of critics has given their opinion. Legislations have to take much care and precaution while enacting law according to that situation because Morality is inner conscience of an individual. Keeping in view the interest of the whole society, it may differ from individual to individual. There are examples wherein law has not confirmed the expected standards of the morality. Under all circumstances, a law must be obeyed until changed by the authorities according to the traditional approach but there are many examples where breaking a bad law was more accepted than to obey it. It is clear that bad laws have been made by the legislatures which were not followed by the people of the society.[5] Today, most of the times law is neglecting the moral principle for decisions by courts. Law believes in evidences and proofs rather than morals. I believe that in earlier days morality was the sole basis of law and now it is one of the bases for incorporating law. If already a person believes in one act and later on, state comes with a law making it binding, that law will become morally justified law for that person because he was already a admirer of that behavior but it will be difficult for those, who will acknowledge it, only after came into being as binding. It may prove troublesome for those people but they will have to follow the rules. Such sort of situation should be curtailed from the society, because it equates the law and morality at same footing, which in reality are different. It is argued by some scholars that nothing is legal unless it passes a test of morality. This proposition is not agreed by me because it is not necessary that every law should be backed by morality, every law has its own pros and cons and even in order to have beneficial impact on society, law need not to pass the test of morality except under exceptional circumstances.
CONCLUSION
In the end, I would like to conclude that the law and morality are separate. Today, legislations have to take care of the other aspects touching the need of the society while making the law, which are beneficial for the society in some way. But the reality, on the other hand is different which conveys that still the culture of creating law on the basis of morality prevails but only at the places, where law directly accepts the moral criteria for its making and nowhere else. Morality is no more remained as a backbone of law in its strict sense. It can only be state while concluding that the level of enforcement of moral standards depends upon case to case. A hard jacket formula cannot be applied by the law to enforce the morality and the degree of enforcement of moral principles depends upon each cases and circumstances. If the effect of morality is injurious on the society, then such sort of morality should not be legislated. One of the best examples is Valentine’s Day, it is considered immoral under Indian Society as can be seen from the acts of Shiv Sena, such acts should not be legislated in any situated as argued by scholars that Morality cannot be legislated. Changed life style, freedom, liberty has its place in law and in such situation; dependence of law on morality is not possible. The novel India must reflect in the law of the land or statutes and it is taking place as can be seen from permitting of homosexuality, permitting euthanasia etc. Further, as morals differ from person to person the restrictions imposed on the laws of obscenity must be exercised liberally. The Sensor Board exercised its power in strict sense in 1980’s where there were no chances of vulgar scenes in the movies but the change can be seen in contemporary movies, which need not to be discussed. People are getting more and more open in terms of their thinking, morals and regarding, the need of the day. To bring some positive changes in the life of people every system of law must be created and should not restrict itself to the morals so as to have negative impacts for many. Generally, in the form of justice, good faith, equity and conscience, morality has inserted into law and legislature has to be cautious at the time of incorporating law because an act or stipulation cannot be inserted into statutes, which is completely against the morals of the society but in the court of law, when it comes to technicalities, often morals disappear. Some scholars propose that law governs each and every activity of human being but in my opinion, it is not possible. Large number of activities of human beings is governed by morality. Further, law and morality can be similar when morality and public notion is same and law and morality cannot be similar when morality and public notion is in engagement. Public opinion and morality cannot be same if seen in terms of each and every individual. Modern age has given importance on the morals rather than law because ultimately, law is like last resort in which people live with the fear in their mind and due to which they follow the same but according to me, if you have intention to obey something because of morals, then you will do that with your own wish and will and that is better than living under apprehension. Law sets some rules and regulations keeping in mind the relation of an individual with the state and each other, but the reality is different, it does not maintain the wishes and wills of each and every individual of the state. Every person has its own different morals and they want to be governed by those morals. One argument which comes to my mind is that law cannot maintain the wills and wishes of each and every individual because then everyone will be governed by separate laws or so called their morals but if law is not able to treat wishes and wills of each and every individual, then it can be taken as violation of rights of a person. Everyone has right to life as per his will not amounting to any evil conduct.
[1] Available at http://www.politicalsciencenotes.com/articles/relationship-and-difference-between-law-and-morality.
[2] V.D.Mahajan, Jurisprudence & Legal Theory.
[3] Available at W.Friedman,Legal Theory,5th edi.,4th Indian Reprint.
[4] Available at, https://www.lawteacher.net/free-law-essays/constitutional-law/the-supreme-court-of-india-morally-law-essays.
[5] Available at,Hart, H.L.A, The Concept of Law, Oxford University Press.
This article is authored by Nehal Pharande, student of LL.M. at DES’s Shri Navalmal Firodia College of Law, Pune.
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